Van Dyck Law, LLC is a full service Estate Planning & Elder Law practice. They write about comprehensive planning in the areas of wills, trusts, powers of attorney, medical directives, Elder Law and probate & estate administration.

Will Changes

02/15/2018

“The fight over Charles Manson’s body and property became more complicated, after a hearing in a downtown Los Angeles courtroom Monday.”

Los Angeles-area Probate Judge David J. Cowan told Charles Manson’s longtime pen pal and an attorney for Manson’s grandson, that a decision on the killer’s body and property was weeks away. The judge explained that disposition of his property and his remains were two different legal decisions, reports The Los Angeles Times in the article “Bizarre legal battle over Charles Manson's body and estate begins in L.A. court.”

Both the pen pal and Manson’s grandson are required to file paperwork on why they should receive Manson’s body and where (which county) they believe that decision should be made. Attorneys for Kern County — where Manson died in November—are eager to hear the court’s decision, because they have been keeping Manson’s body on ice.

The judge’s order creates another delay in the conclusion of the Manson saga. The attorney for Manson’s grandson, Jason Freeman, has only a few days to file a claim for Manson’s remains, as well as to provide arguments on the proper court venue. Michael Channels—Manson’s pen pal for 30 years who claims to have a last will and testament from the killer—must also respond to the judge.

Kern County questioned this because Manson lived in Los Angeles County before he was arrested and in Kings County when he was in prison. State law says those decisions are made in the county where the decedent “domiciled,” or lived. County officials aren’t sure if that means before he was in prison or after.

Channels claims Manson sent him a last will and testament awarding him the entire estate about 15 years ago. Channels operates a website hosting Manson's photos, writings and stories. Manson was the orchestrator of the horrific killing spree in Los Angeles in 1969. Among the dead was pregnant actress Sharon Tate, wife of movie director Roman Polanski. The sensational killings terrified and fascinated the country.

Manson’s grandson said that if he received the remains, he would cremate them and spread them secretly to prevent the location from becoming a morbid tourist destination. Channels said he would do likewise and had no plans for the killer’s remaining property.

In addition to this part of the case, a Santa Monica man says he has another final will and testament from Manson. His colleague claims to be Manson’s biological son. However, neither have filed court documents for their claims.

10/20/2017

“If you have concerns about a will challenge, the first thing that you should do is talk to the attorney.”

The Northwest Indiana Timessays in its recent article, “Choosing an executor,” that will challenges are pretty rare. A successful contest can stem from an issue with the will making process.

That’s all the more reason to use an experienced estate planning attorney to help you create your estate plan. It’s the common mistakes that cause the most trouble, especially when a person tries to save money and do it themselves. If you work with an attorney who focuses on wills and estates in your state, he or she will know when a law changes—and how it can impact your plans and objectives for your legacy.

The time to think about a possible will contest or challenge is in the initial planning process. If you and your attorney discuss your concerns from the start, he or she can plan around them and design tactics that can avoid or reduce the chances of a will contest.

It’s much simpler to tackle a problem now, than to try to solve it later after you’re not around. When working with your lawyer, the more information you offer, the more likely the problem can be addressed and avoided.

For example, if you are considering favoring a daughter who has taken care of you for many years but worry that the other children will be upset, discuss this with your estate planning attorney.

Your attorney may ask you to get a letter from your physician. That letter should confirm that, that in his or her medical opinion, you’re of sound mind and have the capacity to make your own decisions. Capacity is a common challenge to a will. A begrudged heir may claim you were not mentally capable of signing a will.

Your attorney may also record the will signing, so there’s evidence that you weren't under another person’s influence or pressured into signing the will. Don’t be surprised if your attorney asks that the care-giving child isn’t at the signing, to lessen the concern of undue influence.

Some folks will leave a person they intend to disinherit a dollar. That won't do anything, except cost your estate a dollar. Just because you left them a dollar, doesn't mean they can't challenge the will.

Some people also want to have a term in the will stating that anyone who challenges the will is disinherited. However, that is not a 100% lock. This provision, known as an in terrorem clause, is unenforceable in many states.

Speak with an experienced estate planning attorney and plan for the challenge. Odds are it will never arise. However, if it does, by taking these steps, your family will be ready and your wishes will be honored.

A will is a legal document that lets you choose the relatives, friends, and charities who you want to inherit your assets when you die.

If you die without a will, your assets will be distributed to relatives by the state laws of intestacy, which may not be according to your wishes. If you don’t have any relatives, or they can’t be found, your estate will be paid to the state.

You can make your own will, or you can hire an experienced estate planning attorney to assure that every detail is addressed. If you decided to draft your own will, proceed at your own risk. Make sure that you consider the law relating to the execution of the will, the likely value of your estate, all of your potential beneficiaries, any special gifts or bequests, the disposal of any remaining assets and the appointment of an executor. The best course is to have an estate planning attorney from your state prepare your will, because unless you are familiar with the laws of your state, the entire will could be invalid. There is too much at stake to make a mistake.

You want to be sure your will is written correctly, because challenges can be expensive and time consuming. It will also cause unwanted pain and stress to your family and friends.

Make sure that your will is properly witnessed and that you’ve named a trusted executor. Be sure to tell him or her that they have been appointed and make sure they are willing to take on the task. This is important because it will be their job to execute the provisions of your will.

02/15/2017

“A multitude of personal, family and societal consequences ensue for people living past 100.”

With advances in medical technology, it’s increasingly possible to live a long and active life. Experts in longevity planning use advanced medical testing to create healthcare plans that maximize longevity and help people live longer, more rewarding lives.

Among very wealthy families, a critical question is when the next generation will be able to benefit and control the assets they are intended to have. If a wealthy father—thanks to medical advances—is living past 100, it will be some time before his children take control. Perhaps they’ll be in their 70s or 80s. Unless families carefully contemplate all of the possibilities and take proactive estate planning steps, there could be potentially disastrous consequences lurking.

Controlling wealth until death is a common practice with self-made millionaires. However, this can lead to poor estate plans—especially when they live a long time. With wealth holders living a very long time, they must create estate plans that clearly define what’s going to happen. It many cases, it’s prudent to transfer assets before death. This can eliminate possible problems such as family disputes and lawsuits and assets strangely disappearing. Due to the possibility of dementia or older wealth holders being exploited, moving some of the wealth before death can be very beneficial for everyone.

With medical breakthroughs that may help affluent people live longer fruitful lives, there are critical implications. In order to have an effective wealth transfer of a high-net-worth estate, speak with an experienced estate planning attorney to work through the timing and disposition of your assets.

02/06/2017

“In most will contest situations, the issue is whether or not the person who executed the will had the legal capacity to do so.”

Say that after an extended illness, the older of two brothers passes away.

When he died, he was divorced, although he had been married three times. This older brother had two adult children at the time of his death, but had nothing to do with them. He always told his younger brother that when he died, the younger sibling would inherit the entire estate.

However, when the older brother died, his attorney said the majority of his estate would go to his two children and his first wife. The younger brother received 15% of the estate.

But since he was the one who helped his brother through his final illness, shouldn’t he get more?

Intimidation: if a beneficiary pressured the individual making his or her will and he or she wasn’t of clear mind when he or she made the will, it could create an issue and the will could be overturned.

Medication: if a person was heavily medicated when writing his or her will.

Capacity: if a person’s state of mind could be challenged, a will could be overturned.

In the earlier example of the two brothers, none of these issues other than questioning the will creator’s mental capacity were present.

Just because someone tells you that you’re going to inherit their estate when they die, doesn’t mean they are legally obligated to do so.

Contesting wills isn’t easy, can be very expensive and take a great toll on a family. However, there still may be circumstances when a will contest is the right thing to do. Before making a final decision, speak with an estate planning attorney who specializes in this area to get their opinion. If you decide to go forward, you’ll want a lawyer who is familiar with litigation procedures.

01/19/2017

“There's no time like the present to take stock of your financial life.”

Business Insider’s recent article, “A financial adviser shares a 5-step checklist to complete before the end of 2016,” notes that many folks spend more time planning vacations than they do their finances or retirement. The beginning of the new year is an excellent time to take a comprehensive review of what you have—both assets and liabilities—to prepare for the year ahead and any financial milestones or challenges you may face. These can include things like marriage, a home purchase, adopting a child or retirement.

Here are some important financial steps to at the start of 2017.

Take financial inventory.

Consider aggregating your accounts and identifying what you have, such as IRAs, bank accounts, and life insurance. You should take an inventory of your debt and determine how you will pay it off in 2017.

Review your estate plan.

OK, it’s not that exciting, but it’s important. Don’t wait until next year, because tragedy can strike at any time. If you fail to plan properly, and something unfortunate happens, your family may be left unprepared. It's critical to have control over what will happen to everything that you leave behind.

Update your beneficiary forms.

This is a task that should be reviewed periodically—especially if you've been married or divorced, had children or retired in recent years. A designated beneficiary on an insurance policy or an IRA has precedence over a will or a trust. As a result, it's important to make adjustments after major life changes.

Make some smart tax moves.

You should know how the taxes work on your 401(k)s and IRAs, so take a look to be certain you're saving effectively. The maximum annual contribution to a 401(k) is $18,000 or $24,000 if you're over 50. Therefore, if you've got a holiday bonus, that’s the perfect reason to add to your retirement accounts.

You should also remember that you can gift as much as $14,000 per person annually to as many people as you'd like without a gift tax liability. In addition, with any tax planning for retirement, you might think about converting your retirement money through a Roth IRA conversion ladder. Money transferred from a traditional IRA to a Roth is tax- and penalty-free after paying taxes on the conversion.

Evaluate your path to retirement.

Retirement planning is important at every stage of life, so be pro-active. If you create a plan, it can hold you accountable. It is important to speak with a qualified estate planning attorney. Don’t just “set it and forget it.” Stay on top of issues and continually monitor the situation.

If retirement is in the near future, or if you're planning to retire early, start to have discussions about identifying guaranteed income, social security, your pension options, and how to utilize any or all of them into your overall income plan, along with the tax consequences.

10/19/2014

An awkward part of estate planning is telling your kids how much — or how little — they'll get. Here's how a financial planner can help. For clients, one of the most stressful aspects of estate planning — already an emotionally difficult process — is the prospect of telling heirs what they plan to do with their assets. Because conversations about legacy plans can be terribly difficult, clients may avoid them at all costs — and the costs can indeed be substantial.

Here are the suggestions Time offers, as taken from the original article:

Communication. Think about your financial values in a larger context. Sometimes, estate plans will reflect lifelong values like charitable giving or the desire to provide for family first. If your children know your values, there is a good chance they will have an idea of what to expect from your estate.

Evaluate your children’s money skills. Children do not all have the same skills, knowledge, and attitudes about money. Children who will inherit large amounts of money need discussions about how to manage money and to be responsible.

Like one kid better? If you are not planning to treat all of your children “equally”—regardless of the reasons—you should share that information well in advance. Tell it privately to each child. You can have a lot of reasons to treat children differently in an estate plan; however, it is not a great idea to figure out the details when the will is probated. If you and your children can talk about the will's provisions and your reasoning for them ahead of time, there is less chance of conflict between siblings after the parents have passed. Do not allow your children to assume they are getting more than is really the case. If you do not tell them, you may avoid issues now, but there could be bigger troubles and resentment after your death.

Prepare your children for large or unexpected inheritances. Some individuals are shocked to get legacies much larger than expected from the lifestyles their parents led. An estate planning attorney may propose strategies that will help heirs learn more about both the financial and the emotional aspects of managing inherited wealth. An estate planning attorney may also suggest that parents look at options, such as giving more to the children during their lifetime, which would decrease the effect of a sudden inheritance.

Acknowledge those fears. Although they are not typically expressed, the biggest reason for not discussing estate plans with family members may be fear. Parents may think that their children will be angry or disappointed, or expect too much and be resentful of other heirs.

Communication is so important. It can ease some of the pain and anxiety in the decisions that parents make now and the aftermath when the will is probated. Working with an experienced estate planning attorney can also be a worthwhile investment toward achieving this goal.

10/16/2014

Too often, the need for the most basic estate-planning documents is overlooked or misunderstood. While many people would admit they should have a will, 50 percent of Americans with children and 41 percent of baby boomers age 55 to 64 don't have one, according to a survey from online legal services company RocketLawyer.com. If you want to stay in control of your money and medical decisions until the end, here are the five most important estate-planning documents you need to have.

A will. It does not get any more basic in estate planning than drafting a will. A will states who will receive your estate assets and care for your minor children upon your death. As you may recall from previous posts, without a will, the state where you live gets to decide who gets your assets. The court will typically disburse shares based on their degree of family relationship to the decedent (you). Commonly, this degree moves from your spouse, then to children, then to your parents, and next to your brothers and sisters. If you do not have anyone in this line-up, other relatives you may never have known will make their claims. If there is still no one to claim the money as a relative, then the state will just keep it!

Why give gifts to people you hardly know or forfeit your estate to the state when you can avoid it simply by creating a will to tell everyone in writing who gets what?

Beneficiary designations. This seems like a pretty insignificant little form, but it can be huge when it comes time to disbursing your life insurance policy or any retirement account. Chances are you probably completed and sent in a beneficiary designation form when you took out the policy or opened the account. That form identifies who gets this money when you die. This form—not your will—says who gets the money. The original article suggests that you check your list of beneficiaries when there were any life changes, like getting married or divorced, having a child, or having more children.

Financial power of attorney. A financial power of attorney (financial POA) is another very critical piece of paper. It gives a trusted individual the authority to resolve your financial issues on your behalf if you become incapacitated or unable to make those decisions for yourself. A financial POA provides you with more control over your financial affairs and a better chance that your wishes will be followed. If you do not have a financial POA, the court selects someone to take care of these decisions—this can be a very lengthy and expensive process. The court usually appoints a close family member, but that person might not be the one you would have chosen. The original article also stresses that a financial POA is critical if you have a non-spouse partner: if you designate your financial POA, you have control over the scope of powers to grant your "agent," which can encompass accessing your financial accounts and managing all your financial affairs.

Medical power of attorney. A Medical power of attorney allows you to select who will make medical decisions on your behalf if you are unable to do so for yourself. Your chosen designee will be able to access to your medical records, speak with your medical caregivers, and deal with other important issues. Your designee will also make sure that your "advanced medical directive" is carried out.

Advanced medical directive. Deciding if you want tube feeding or to be put on a ventilator can be a really hard decision for loved ones to make if you have not put your wishes in writing. An advanced medical directive should clearly define what you want and what you do not want. This takes the decisions out of the hands of your family and improves the odds that your final instructions are followed.

Once you get these documents set up, the original suggests that you review and update them from time to time, especially if you have had any changes in your life. These are just the basics. You should talk to an experienced estate planning attorney and get sound advice for all of your estate planning issues.

10/15/2014

The murkiest part of estate planning is discussing when and how to distribute your assets to your heirs. This process requires a series of considerations and trade-offs to avoid emotion-laden family problems... when it comes to these issues, things get gray because emotional factors drive decisions now. There is no correct answer on how to distribute your estate.

A recent Forbes article, titled "Estate Planning 101: Picking Your Heirs," provides some very useful instructions on basic estate planning. The article lists a series of questions that can help you organize your thoughts and prioritize your planning.

The questions include:

1. How do you feel about charities? Will you leave something now via trust or in your will?

2. Will you give each of your children an equal share of your estate, or will you divide it based on some other factors?

3. Do you plan to make some gifts or bequests now while you are still around? Are your assets significant enough to think about getting them out of your taxable estate now to reduce your heirs' estate and gift tax bill?

4. What are you going to do with gifts like artwork, jewelry or furniture? Do some of these have sentimental value to particular heirs?

5. How do you plan to tell your heirs about your wishes for your estate?

The original article asks several more questions worthy of reading. It also notes that while you may control what and how you give, you are not able to dictate the recipients' reactions, how they will use those assets, or how they will treat each other.

Answering these tough questions regarding the disposition of your assets can be stressful. Take it slow and get some help. Read through the article and speak to an experienced estate planning attorney.

10/13/2014

Of all the fights that can erupt during divorce proceedings or when a family member leaves behind a large estate, some of the biggest take place over the artwork.

A recent Wall Street Journal article, titled "Tips for Dividing Art in a Divorce or Death," warns that fighting can be avoided if art lovers and their loved ones learn a little about some legal and tax basics. The original article offers some ideas on how to decide—in a fair and civilized manner—who gets what, and the ways of disbursing an art collection to minimize taxes.

First, after an art collector dies—before anyone starts eying their walls for a new masterpiece— the entire estate must be finalized in probate court, which can take some time (maybe even years). If the deceased's home is not occupied, the original article advises to upgrade the security to transfer the art to a climate-controlled fine-art storage facility. None of the art should be removed before the court-approved distribution, and the decisions about the art should be part of the overall estate planning, as art that passes at death is subject to a step-up in value for tax purposes. All artwork will need to be appraised professionally.

Even if an art collector specifies who gets what, there still may be problems. For instance, if a collector wills a painting to one person and gives everything else to another, the second individual will be responsible for paying the estate tax for the painting. The original article suggests that the will should specify that each heir will pay his or her share of taxes on the assets received.

For a person who dies in the current year (2014) there is a federal estate tax threshold of $5.34 million, so an estate worth less than that has no estate tax liability. However, the article reminds us that you only need one Picasso or Warhol to put you over that line and make your estate taxable. This tax could be as much as 40%! To make matters worse, some states also tax up to 20% above a $1 million threshold.

The original article also describes how collectors will sometimes sell art to help defray anticipated estate taxes. Alternatively, you should read the original article and talk to your estate planning attorney about setting up a tax-exempt charitable remainder unitrust and gift artwork into the same.

If there is a Degas in your dining room or maybe a Dali in your den, speak to an experienced estate planning attorney about a strategy to pass your collection to your family in the most prudent manner.